Plaintiff’s Attempt to Use ADA to Get Another Year of High School Eligibility Fails
A federal judge from the Middle District of Florida has denied a student-plaintiff’s motion for a preliminary injunction, which would have essentially forced the Florida High School Athletic Association, Inc. (FHSAA) to grant him an extra year of eligibility because of a disability. In so ruling, the court determined that granting such a motion would result in a “fundamental alteration” of the FHSAA’s “program.”
The plaintiff, Thomas Pritchard, filed a three-count complaint against the FHSAA, alleging violations of Title II of the Americans with Disabilities Act and the Rehabilitation Act of 1973, based on disability discrimination.
Pritchard participated in high school athletics during his 9th and 10th grade years in Virginia before transferring to Florida and attending the Canterbury School. Based on a pre-enrollment assessment, Canterbury administrators recommended the plaintiff repeat the 10th grade. Pritchard did so, and competed in the school’s basketball and lacrosse programs. The following year in the 11th grade, the plaintiff competed in the school’s football, basketball, and lacrosse programs. Under the defendant’s Bylaw 9.5.1, this was the final year of Pritchard’s eligibility because it was his fourth consecutive year in high school.
The plaintiff is now in the 12th grade at Canterbury and on track to graduate at the end of the school year. In August 2018, Canterbury filed a request with the FHSAA to waive Bylaw 9.5.1 and give Pritchard an additional year of eligibility. During the 2017-18 school year, Canterbury staff recommended a psychologist test the plaintiff. A full psychoeducational evaluation concluded Pritchard possessed a learning disorder with impairment in reading and comprehension. Canterbury administrators also identified a previous injury to the plaintiff’s hand, which caused him to have to write with his non-dominate hand, as a physical disability that adversely affected his math proficiency. As a supplement to the school’s requested waiver, Pritchard ‘s attorney argued that a waiver was appropriate because of, inter alia, the plaintiff’s learning disability and his hand injury.
An FHSAA committee denied the request, leading to two unsuccessful appeals.
On Feb. 14, 2019, Pritchard filed a Motion for Temporary Restraining Order seeking, inter alia, a temporary restraining order and preliminary and permanent injunctions ordering defendant to accommodate him by allowing him to participate in boys’ lacrosse during the 2018-19 school year. On Feb. 19, 2019, the court denied the portion of the motion seeking a temporary restraining order. The Court found that by waiting to file the motion for nearly three and a half months until only two days before the lacrosse team’s season began, the “emergency” nature of the plaintiff’s situation “was his own making.”
On Feb. 25, 2019, Pritchard filed a request for a hearing on his motion for preliminary injunction, which resulted in the instant opinion.
In determining whether preliminary injunctive relief is to be granted, courts consider whether the movant has established (1) a substantial likelihood of success on the merits, (2) that irreparable injury will be suffered if the relief is not granted, (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant, and (4) that entry of the relief would serve the public interest. Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005).
Addressing the “irreparable injury” contention first, the court relied on case law, which suggests that a delay in seeking a preliminary injunction of even only a few months—though not necessarily fatal—militates against a finding of irreparable harm.
Next, the court turned to whether the plaintiff has demonstrated “a substantial likelihood of success on the merits.”
Turning to the Rehabilitation Act, the court noted that to establish a claim under the Rehabilitation Act, a plaintiff must prove: (1) he has a disability as defined by the Act; (2) he is ‘otherwise qualified’ to participate in high school athletics as regulated by the defendant, or that he may be “otherwise qualified” via “reasonable accommodations;” (3) he is being excluded from participating in high school athletics “solely because of his disability;” and (4) the defendant receives federal financial assistance. Johnson v. Fla. High School Activities Ass’n, Inc., 899 F. Supp. 579, 582 (M.D. Fla. 1995).
The court found that even assuming the plaintiff “can meet the other elements, he likely cannot demonstrate the second and third elements listed above. Regarding the latter, it is clear the plaintiff is not being excluded from participating in high school athletics ‘solely because of his disability.’ Rather, the plaintiff is being excluded because he has already completed four consecutive years and, therefore, like every other student, he is ineligible under defendant’s bylaws. See Sandison v. Mich. High Sch. Athletic Ass’n, Inc., 64 F.3d 1026, 1032 (6th Cir. 1995)
The court also found that the plaintiff “has not demonstrated he is ‘otherwise qualified’ to participate. The plaintiff cannot meet defendant’s requirements in spite of his disability since he has already completed four consecutive years. Therefore, the plaintiff’s claim depends upon a showing that defendant could have reasonably accommodated him and refused to do so.”
While the plaintiff argued “that the requested accommodation, that is, allowing him an additional year of eligibility, is neither an undue burden nor fundamentally alters defendant’s program,” the defendant was able to successfully argue that waiving the four-year rule to allow plaintiff a fifth year of participation “would alter the fundamental nature” of the defendant’s eligibility program.
Turning to the plaintiff’s ADA claim, Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
To establish a claim under Title II of the ADA, plaintiff must show (1) he is a “qualified individual with a disability,” (2) he was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by a public entity, and (3) the exclusion, denial of benefit, or discrimination was by reason of his disability. See Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1083 (11th Cir. 2007). As with the its determination regarding section 504 of the Rehabilitation Act, the court found that the plaintiff cannot demonstrate a substantial likelihood of success regarding his ADA claim because he is not a “qualified individual with a disability” and his exclusion from participation was not “by reason” of his disability.
Regarding the latter element, the court noted again that plaintiff is prevented from participating in high school athletics this year not because of his disability, but because he has already completed four consecutive years. Accordingly, the court finds that the plaintiff is unlikely to succeed in establishing the “by reason of his disability” element. See Sandison, 64 F.3d at 1036
As to the “qualified individual with a disability” element, the ADA defines that term as “an individual with a disability who, with or without reasonable modifications . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). As noted previously, plaintiff only meets defendant’s eligibility requirements if the four-year provision is waived. Because the court has determined such a waiver would result in a fundamental alteration, the proposed modification is not reasonable. Pritchard v. Fla. High Sch. Ath. Ass’n, 2019 U.S. Dist. LEXIS 44706; M.D. Fla.; Case No: 2:19-cv-94-FtM-29MRM; 3/19/19
Attorneys of record : (for plaintiff) Michael Lamar Buckner, Michael L. Buckner Law Firm, P.A., Plantation, FL. (for defendant) Leonard E. Ireland, Jr., LEAD ATTORNEY, Clayton-Johnston, PA, Gainesville, FL.
